G.R. No. L-24456. May 28, 1970
LINO VICTORINO, LETICIA PIKE, FRANCISCA VDA. DE PIKE, AGATONA NATIVIDAD, FELISA LAKAMBAKAL, NORMA PIKE AND MAXIMO STA. ANA, PLAINTIFFS-APPELLEES, VS. HONORIA LAO AND PRIMITIVO …
TEEHANKEE, J.:
Two direct appeals on questions of law by the contending parties
relating to the same case decided by the Court of First Instance of Rizal.
From the decision rendered by the trial court on March 5, 1964
granting plaintiffs’ complaint for rescission of contracts refund of payments
made and attorney’s fees, defendants appealed in Case L-24456, claiming that
their counsel was not notified of the hearing set for February 26, 1964 at which the trial court
received plaintiffs’ evidence in the absence of defendants and that they have
been therefore deprived of their day in court.
Upon defendants’ filing of their notice of appeal, expressly
appealing the decision to this Court, without asking for the elevation of the
evidence, they filed their record on appeal.
Plaintiffs objected to the approval thereof, on the ground that certain
specified material pleadings and records which were omitted should be included
therein. The trial court, however,
overruled plaintiffs’ opposition, ruling that the additional matters were not
material for purposes of the appeal and approved on January 15, 1965 defendants’ record on appeal
without requiring any amendment thereof.
Plaintiffs appealed from said order in Case L-25273 and filed their own
record on appeal, including the additional pleadings and records omitted from
defendants’ record on appeal, which was likewise approved in due course on
July 3, 1965 by the trial court.
The Court ordered on January
5, 1966 the consolidation of these two appeals, in view of their
reference to the same case between the same parties.
The records show that upon joinder of
the issues, plaintiffs’ counsel filed a motion dated August 16, 1963 to set the
case for trial, setting the same for consideration by the trial court on August
31, 1963, with due notice to defendants’ counsel. The trial court granted the same, and
pursuant thereto, the clerk issued and mailed to the parties’ counsels on October 15, 1963 the Notice of
Hearing, advising them of the hearing of the case set for February 28, 1964 at 8:30 a.m. The
initial of the mailing clerk attesting to the mailing of the notice of hearing on October 15, 1963 appears on the
court’s copy thereof in the record of the case.
At
the hearing of February 28, 1.964, the trial court noting that “defendants
and their counsel did not appear notwithstanding the fact that notice of
hearing was sent to the latter as early as October
15, 1963” allowed plaintiffs to submit their evidence ex–parte. It
thereafter rendered under date of March 5, 1964 its decision in favor
of plaintiffs, as follows:
“From the evidence submitted, it appears that
defendants Honoria Lao and Primitivo
Lao are the registered owners of two
parcels of land described in, and covered by, Original Certificate of Title No.
2079 of the Register of Deeds of Rizal; and that said
defendants had sub divided said parcels of land and is now known as the ‘Fatima
Subdivision.’ A copy of the subdivision
plan was submitted in evidence as Exh. C. It was also established that they appointed Felipe L. Pike as their sales administrator
of the subdivision lots (Exh. A); that the subdivided
lots were then offered for sale to the public with assurance that subdivision
road, canals, drainage and other subdivision improvements would be constructed;
that because of these assurance of the defendants, plaintiffs bought several
lots and signed the corresponding deeds to buy by installments the said lots as
shown by the agreements, Exhibits B. B-1 to B-13 inclusive; that in accordance
with the terms embodied in said Agreements, plaintiffs had made down payments
and monthly installment payments as follows:
a) Lino Victorino ………………………... P 4,290.40
b) Leticia Pike
…………………………… .
1,683.60
c) Francisca Vda.
de Pike …………… 2,581.00
d) Agatona
Natividad ……………………
924.50
e) Felisa Lakambakal ………………….. 2,849.90
f) Norma Pike
…………………………….. 4,068.00
“When defendants failed to construct and make improvements in
the subdivision in order that the subdivided lots purchased by the plaintiffs
may be occupied, the latter made written demands upon the former asking that
subdivision roads and other improvements assured to them would be constructed (Exhs. D, D-1 to D-6 inclusive) that because defendants
failed to comply with their assurances to the buyers of the subdivision lots to
construct roads and other improvements, plaintiffs were compelled to file the instant action
for the
rescission of their contracts and for damages.
“It was established further that the payments made by the
plaintiffs were admitted by the defendants when they entered into a compromise
agreement with their sales manager, Mr. Felipe L. Pike, in another case
docketed as Civil Case No. 6959 of this Court entitled ‘Felipe L. Pike, vs. Primitivo Lao, et al’, a copy of which compromise agreement
was submitted in evidence as Exhibits E and E-1; that the subdivision plan of
the Fatima Subdivision has not yet been approved by the Bureau of Lands and the
Land Registration Commission
which makes it improbable for defendants to issue separate titles corresponding to the
subdivision lots; that the parcels of land constituting the subdivision had
been mortgaged without the knowledge of the plaintiffs herein and if ever said
mortgage is foreclosed irreparable damage will be caused to herein plaintiffs.
“Plaintiffs did not adduce evidence with respect to plaintiff Maximo Sta. Ana and instead their counsel manifested that
the complaint with respect to him be dismissed for
lack of interest to further prosecute it.
“WHEREFORE, judgment is hereby rendered in favor of the
plaintiffs and against defendants as follows:
“1. Declaring the agreements designated as
Contracts Nos. 34, 48, 47, 36, 35, 40, 41, 42, 38, 37, 43, 44 and 45 of the
Fatima Subdivision (Exhibits B, B-1 to B-13 inclusive) as rescinded, null and void;
“2. Ordering defendants to refund jointly and severally to the plaintiffs, as follows:
a) Lino Victorino …………………………….. P
4,290.40
b) Leticia Pike……………………………………… 683.60
c) Francisca.Vda. de
Pike……………….. 2,851.00
d) Agatona Natividad………………………..
942.50
e) Felisa Lakambakal……………………….
4, 068.00
with legal interest of 6% per annum
from the filing of this complaint and until fully paid;
“3. Ordering
defendants to pay jointly and severally the plaintiffs except Maximo Sta. Ana the sum of P500.00 as reasonable attorney’s
fees; and
“4. For defendants to pay the costs.
“The complaint of plaintiff Maximo
Sta. Ana is dismissed without prejudice and without costs.”
Upon receiving notice of the decision, defendants’ counsel filed
their Motion to Set Aside Decision and for New Trial alleging that no
annotation on appeared in the records to show that the notice of hearing was
ever sent to him and that “due to the inadvertence on the part of the
clerk in charge of sending notice to parties, defendants’ counsel was never
notified of the said case. “No
affidavit of merits was submitted by defendants. The trial court denied the motion since
“no affidavit of merits has been submitted and so the Court is not in a
position to know whether or not defendants have a valid and meritorious defense.”
Pending perfection of defendants’ appeal, the trial court, upon
plaintiffs’ motion alleging that defendants have been exhausting all their
remaining assets, thus endangering plaintiffs’ right to recover on their
judgment due to the delay ensuing from defendants’ appeal, issued a writ of
execution of the judgment pending appeal.
Defendants sought the annulment of such execution order in an action of certiorari filed
on September 18, 1964[1]
on the same allegations that the trial
court conducted a hearing without a notice of hearing to them and they were
thus deprived of their day in court. The
Court dismissed defendants’ petition in its decision rendered under the pen of
Justice Fernando on November 25, 1967, holding defendants’ main ground of
attack “that the motion for the issuance of the writ of execution filed
by (plaintiffs) was ‘unverified'” to be without merit since “there is
no such requirement under the Rules of Court.
A motion of the prevailing party
with notice to the adverse party allows the Court to ‘order execution to issue
even before the expiration of the time to appeal, upon good reasons to be
stated in a special order.'” With reference to the alleged nullity
of the trial court’s decision, the
Court had earlier noted that as to the alleged lack of notice of hearing, “(T)he answer of respondents(plaintiffs) dated October
16, 1964, denied the truth of the above
assertion with allegation that respondent Judge did not hear the case on February 28, 1964,
until after he was informed by a deputy clerk that notice of such trial to
petitioners (defendants) was sent as early as October 15, 1963. Parenthetically it may be observed that this
issue, the pertinence of which is not so apparent in this petition for certiorari being more
connected with the case on the merits, apparently has been abandoned in the
memorandum of petitioners (defendants) dated January 25, 1965, as noted by respondents (plaintiffs) in their
reply memorandum of February 8, 1965.”
Defendants in this appeal, stress that they have been denied due process in that the
trial court merely “relied on the notation made by the clerk that a notice
was sent to the parties. However, there
was no evidence to show that such notice was served or received by the parties
concerned.”[2]
Defendants’ appeal must fail for the following reasons:
1.
With regard to defendants’ claim that through
inadvertence of the clerk in charge of sending notices to parties, their
counsel was never notified of the hearing set for February 28, 1964, defendants
have failed to substantiate their bare assertion in the manner required by Rule
37, section 2 of the Rules of Courts.
Said Rule requires such motions for new trial to “be proved in the
manner provided for proof of motions.[3]
Here, as against the fact of record that notices of the hearing were sent to
the parties as far as four months back on October 15, 1963, per the attesting
initial of the mailing clerk, as noted by the trial court, the record fails to
show that defendants ever presented any counter-affidavit of the court personnel
in charge of sending out the notices or asked the trial court to receive any
oral testimony or deposition to substantiate their barren claim of non-receipt
of the notice of hearing.
2. Their complaint that “the court failed or refused to
verify from its employees, more particularly, the clerk-in-charge of the
sending of notice to parties concerned and custodian of registry receipts and
registry return cards”[4]
is misdirected, for notwithstanding plaintiffs’
opposition invoking the legal presumption of service of the notice of
hearing “which is not overcome by the mere allegation of defendants’
counsel that there is no annotation on the records of this case that he
actually received such notice,”[5]
defendants did nothing to support their claim.
It was incumbent upon them as the movants —
and not on the trial court which had correctly taken note of the early notice
of hearing sent to defendants in reliance on the presumption of regular
performance of official duty and of receipt in the regular course of the mail
of notices duly directed and mailed,[6]
— to conduct such verification and submit the corresponding court document
supporting their claim of alleged non-mailing of the notice to their
counsel. For defendants merely to assert
that the notice was not received by their counsel — as against the attesting
initial of the mailing clerk that said notices were duly sent — is to beg the
question.
3. Defendants committed yet another grave error in appealing
directly to this court, without elevation of the evidence. Plaintiffs raised the question directly
before the Court in his Motion to Dismiss Appeal of August 27, 1965[7]
but defendants stated categorically in their opposition thereto of September 1,
1965 that they “appealed this case to this Honorable Tribunal on purely
question of law which involved ‘due process of law.'”[8]
Defendants themselves have foreclosed any review of the trial court’s finding
of fact that “notice of the hearing was sent to (their counsel) as early
as October 15, 1963”, for in a direct appeal to this Court on questions of
law (as against a general appeal to the Court of Appeals with the elevation of
the evidence which opens the entire findings of fact and of law of the trial
court to review) appellants “must be deemed to have accepted as conclusive
what the lower court found as established by the evidence, only questions of
law being brought to us for review.”[9]
It is pertinent in this connection that in the action for certiorari of Lao vs. Mencias,[10] supra, instituted by defendants
to stop the execution of the judgment against their pending appeal, it was
noted that they apparently abandoned their claim therein of not having been
sent the notice of hearing.
4. Finally, defendants’ cause suffers from the fatal defect of
their not having submitted with their motion for new trial an affidavit of
merits stating facts, and not mere conclusions, constituting their valid
defense, which would enable the trial court to properly determine whether or
not they have a valid and meritorious defense to warrant its setting aside its
judgment and reopening the case. The
trial court therefore committed no error in denying the motion. As held consistently by the Court and
restated in Chingan vs. LaGuardia[11]
“petitioner’s failure to attend on the date of hearing due to lack of
appropriate notice, supposing it to be true, would not suffice to justify the
relief provided in Section 1, Rule 37 of the Rules of Court, as Section 2
thereof requires that an affidavit or affidavits of merit must be attached to the motion
as a condition sine qua non. Petitioner failed to comply with such
requirement of Section 2, and this is fatal.
The trial court, therefore, correctly refused to reopen the
case.” Plaintiffs properly raised
this fatal issue against defendants before the trial court, but instead of
attempting to cure the same, defendants have persisted in their futile stand
even in their brief that “We cannot discuss the facts of the case because
there were no facts yet adduced in our presence. We believed (sic) that the facts adduced
during the ex–parte hearing of the case at bar cannot bind, in our
opinion, the defendants-appellants, as the fundamental law of the land was
violated.”[12]
A perusal of defendants’ answer to the complaint and of the documentary
evidence far plaintiffs as set out in the trial court’s decision strongly bears
out plaintiffs’ assertion that it would have been a waste of time to have a new
trial as the material allegations of plaintiffs’ complaint, based on
documentary evidence, could not possibly have been overcome or disproved by
defendants. In fact, defendants have not
even attempted in their brief to dispute the findings of fact and judgment of
the trial court.
As to plaintiffs’ appeal in Case L-25273, we have noted at the
beginning of this decision that plaintiffs, as a practical measure, filed their
own record on appeal including therein the additional pleadings and records
whose inclusion in defendants’ record on appeal was rejected by the trial court
on the ground that they were “not material for the proper understanding of the issues involved
in case.” Plaintiffs’ record on
appeal was approved without opposition, and the Court has taken due
consideration of the excluded pleadings as reproduced in plaintiffs’ own record
on appeal.
The Court finds that the trial court erred in not ordering the
amendment of defendants’ record on appeal to cover the inclusion of the pleadings and records as sought by
plaintiffs. The three principal items,
to wit, plaintiffs’ motion for trial dated August 16, 1963; notice of the lower
court granting said motion and setting the date of trial for February 28, 1964;
and notice of hearing dated October 10, 1963 sent by the Clerk of Court on
October 15, 1963 to the lawyers of the parties,[13] were certainly material and
“related to the appealed order or judgment and necessary for the proper
understanding of the issue involved” as to require their inclusion, as provided by Rule 41, section 6 of the
Rules of Court. In Jai Alai
Corporation vs. Court of First Instance
of Manila,[14] the Court, speaking through Justice J. B.
L. Reyes, reiterated its injunction that “trial courts should be slow in
excluding matters that an appellant wishes to insert in the record,”
pointing out that “(T)he fear that the inclusion of the rejected
pleadings and motions may cause the determination of the appeal to be unnecessarily
involved, should yield to the advantage of enabling the reviewing tribunal to
have before it all matters necessary to a just determination of the question submitted to it, thereby
obviating possible remands or new trials (Prats &
Co. vs. Phoenix Insurance Co., 52 Phil., 857).”
The rationale of the cited case applies equally to material
matters that the appellee seeks to have included in
the appellants’ record on appeal, for as was brought out in the earlier case of
Smith Bell & Co. vs. Sta. Maria,[15]
“matters which at first sight appear to be irrelevant, may in the course
of an argument on appeal be found to be of value in the determination of the
questions at issue.”
ACCORDINGLY, the judgment appealed from is hereby
affirmed. With costs against
defendants-appellants in both cases.
Concepcion, C.J., Reyes, Dizon, Zaldivar, Fernando, and Villamor, JJ., concur.
Makalintal, J., in the result.
Castro, J., on leave.
Barredo, J., concurs in a separate opinion.
[1]
Honoria Lao and Primitivo
Lao, petitioners, vs. Hon. Judge Eulogio Mencias, of the Court of First Instance of Rizal, and Lino Victorino, Leticia Pike, Francisca Vda.
de Pike, Norma Pike, Agatona Natividad,
Felisa Lakambakal, respondents, G.R.
No. L-23554, Nov. 25, 1967, 21 SCRA 1021,
notes in parenthesis supplied.
[2]
Defendants-appellants’
brief, p. 11.
[3]
“SEC. 7. Evidence on motion. — When a motion is based on facts not
appearing of record the court may hear the matter on affidavits or depositions
presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony
or depositions.”
[4]
Defendants-Appellants’
Brief, p.
11.
[5]
Record on
Appeal in G.R. No. L-24456, p. 34.
[6]
Rule 131, sec. 5(m) and (v) See Fojas vs.
Navarro, G.R. No. L-26365, April
30, 1970 and cases cited.
[7]
Rollo, p. 13.
[8]
Idem, p. 17, sic.
[9]
Lanzar vs. Guerrero, G.R. No. L-21581, Aug.
28, 1969, 29 SCRA 107.
[10]
See fn. 1.
[11]
G.R. No. L-20739,
June 30, 1966, 17 SCRA 540 and
cases cited. See also Camia vs. Reyes, 108 Phil. 513 (1960) cit. Gonzales vs. Amon, 98 Phil. 587 (1956).
[12]
Defendants-appellants’ brief, p. 3.
[13]
Plaintiffs’ Record on Appeal, pp. 20-21.
[14]
96 Phil. 407 (1955).
[15]
49 Phil. 820 (1926).